Houston layoffs spurred by Prop B vote avoidable, some...

1of4Mayor Sylvester Turner and Houston Professional Fire Firefighters Association President Marty Lancton debated Proposition B, the November ballot referendum that would grant firefighters pay parity with police officers of corresponding rank and seniority, at St. Johns United Methodist Church on Saturday, Oct. 6, 2018.Photo: Jasper Scherer

4of4Houston Professional Fire Fighters Association president Patrick "Marty" Lancton speaks to the media after a judge sided with the association that Houston's City Hall improperly electioneered against firefighters pay measure Tuesday July 31, 2018 in Houston.Photo: Michael Ciaglo, Staff photographer / Staff photographer

Mayor Sylvester Turner’s administration is moving forward with plans for hundreds of layoffs following last week’s voter approval of Prop B despite questions about whether jobs could be saved through renewed negotiations with the city’s firefighters union.

The pay parity referendum, which passed decisively after a bitter campaign that pitted Turner and the city’s police union against Houston firefighters, adds an estimated $100 million a year to the $500 million annual budget of the Houston Fire Department to bring firefighter salaries in line with those paid to police of corresponding rank and seniority.

In the wake of the amendment’s passage, Turner announced HFD would hire no new firefighters and ordered Fire Chief Sam Peña to draft a plan to move the department from four shifts to three, perhaps eliminating more than 850 positions. The new staffing chart could be submitted to the city’s civil service commission later this month, Turner said, with an expected city council vote in early January.

There are questions, however, about whether state collective bargaining laws would let the city and the firefighters union reach an agreement that would supersede the city charter — including the provisions voters approved last week — lessening the immediate fiscal impact of the vote. Councilmember Dwight Boykins, for instance, said fire union leaders have told him they would be willing to phase in the more-than-25 percent pay raise.

“If we can work together and solidify a collective bargaining contract, it will address the needs we have been asking the city to address for the firefighters and their families for a very long time,” said Marty Lancton, president of the Houston Professional Fire Fighters Association. “We’re prepared to discuss anything, but the mayor has refused to negotiate.”

Lancton pointed to seven times since 2005 that the union’s collective bargaining agreements have superseded language in the city charter’s appendix, and some attorneys practicing in labor law backed the union’s view.

“Collective bargaining agreements under (Texas Local Government Code Chapter) 174 do supersede any contrary provisions of local legislation,” San Antonio labor attorney David Van Os said. “The Legislature made itself very, very clear on that.”

Craig Deats, who works with police and fire labor groups and has worked for the Houston fire union in the past, said unions routinely use collective bargaining to supersede local rules, most commonly in the areas of hiring and promotional provisions.

“We do that all the time,” Deats said. “The hiring provisions under the civil service act — when cities are bound by that, as Houston is — are something the parties typically bargain to change so as to make them more modern.”

Turner said he agrees a collective bargaining agreement can supersede the city charter, but has said he cannot sit down with fire union leaders without first challenging Prop. B in court, saying “you cannot negotiate the people’s vote.”

“You cannot use the public as a negotiating tool, which is what they’re attempting to do now,” Turner said. “Now, if they want to follow me to the courthouse and agree collective bargaining preempted Prop. B and throw it out, that’s a different thing. But short of that, I have been given a $100 million bill.”

Asked whether the mayor’s comments reflected a view that negotiating would be improper in light of the voters’ decision or illegal, the administration provided a statement that read in part, “Neither the charter amendment nor state law allow the city and the firefighters to simply ignore the law and implement some agreement that is inconsistent with the prevailing law.”

Some legal experts supported the mayor’s view, arguing that by passing the proposition, voters had tied the city’s hands.

“Regardless of fiscal realities, the meaning of the charter amendment is clear. Collective bargaining up to that is technically a violation of the charter amendment, even if the city and firefighters agree on it,” said Matthew J. Festa, a professor at the South Texas College of Law Houston. “It doesn’t make it OK to violate the charter just because everybody agrees to violate the charter.”

James M. Douglas, a professor at Texas Southern University’s Thurgood Marshall School of Law, said he believes it would be difficult for the mayor and firefighters to implement the proposition’s mandate through a collective bargaining contract because of the intent of the proposition.

“The ordinance was clear. It didn’t say over a period of time,” Douglas said. “And that was not the purpose of the ordinance to start with. The purpose of the ordinance was to have it done immediately.”

Some city leaders said they were frustrated by conflicting legal advice they had received from the city attorney’s office, and a lack of clarity over what the law allows or what Turner and firefighters would entertain if they returned to the negotiating table.

Councilmember Greg Travis said that before last week’s vote, council members were told collective bargaining would supersede the charter, and now are being told it cannot or that it will take a lawsuit.

“Everybody is talking in generalities,” Travis said. “I’ve asked them specifically what they want and they can’t tell me. Folks, let’s get down to the brass tacks of this.”

Other council members expressed hope they could use state collective bargaining laws to provide wiggle room to negotiate.

“We need to do everything we can to get everybody back to the table and get a sustainable pay increase for firefighters and honor the people’s will,” said Councilmember Brenda Stardig, who chairs the city’s public safety committee.

Turner had proposed that the council approve a $1.3 million contract with a law firm to represent the city in widely expected litigation over the parity vote — the city must explore all options in an effort to reduce cuts to services, he said — but he asked council members last week to delay consideration of the item until late November.